The Supreme Court is hearing oral arguments on a lethal-injection case on Wednesday — the first they have agreed to hear since 2008. The justices will need to decide if midazolam, a drug that has resulted in three painful, protracted deaths that left inmates gasping for air and very awake, constitutes cruel and unusual punishment, thus violating the Eighth Amendment.
The attorney for one of the four Oklahoma men on death row challenging the use of midazolam told the press last week that their aim “is to make sure, so we can be as sure as we can, that if the state executes by means of lethal injection that you will not feel pain and you will not suffer.”
In 2008, the Supreme Court decided that the three-drug cocktail that was used in executions did not violate the Eighth Amendment. In the seven years since that decision, some of the drugs have grown scarce. Pharmaceutical companies wary of being affiliated with death have refused to sell drugs for that purpose, and foreign countries that used to export such drugs to the United States for that purpose have stopped doing so for the same reason. As a result, many states have had to experiment with new drugs like midazolam, or return to old ways of executing those on death row, like firing squads or the electric chair. Oklahoma, which is defending the use of midazolam in court today, recently passed a law making hypoxia by nitrogen gas a backup execution method, in case the justices do not rule in their favor.
Time magazine talked to a professor in Oklahoma last week who had recommended nitrogen gas as an option to the state. He told them “that while lethal injections used to be an effective and humane way to execute someone, it’s really not anymore. The facts on the ground have changed. Now it’s like an experiment every time. Here’s some drugs and maybe we’ll have a paramedic administer it and let’s see what happens. Maybe this will kill ‘em.”
ProPublica pointed out yesterday that the state may have some additional problems with their defense. Their key expert witness, who vouched for midazolam’s effectiveness, relied heavily on Drugs.com to make his point. As Propublica notes, the website, as you might expect, is “not intended for medical advice, diagnosis or treatment.” Earlier this year, Justice Sonia Sotomayor had already signaled that she was “deeply troubled” by the academic rigor of the testimony.
The drug has also been used in executions in Florida, Ohio, and Arizona. When Chief Justice John Roberts wrote the majority opinion in the 7–2 lethal injection ruling in 2008, he noted that “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Justice Ruth Bader Ginsberg, dissenting, wondered if the lack of safeguards in making sure an inmate was unconscious ”creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”